* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-40767

USDC No. B-94-CV-289

 

ROBERT JOE McSPADDEN,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE, 

INSTITUTIONAL DIVISION,

Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

- - - - - - - - - -

July 23, 1999

Before BENAVIDES, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Robert Joe McSpadden, Texas prisoner # 600096, moves this

court for a certificate of probable cause (CPC) following the

district court’s dismissal of his petition for a writ of habeas

corpus, filed in 1994, pursuant to 28 U.S.C. § 2254. A

petitioner is required to make a substantial showing of the

denial of a federal right to obtain a CPC. Barefoot v. Estelle,

463 U.S. 880, 893 (1983). In order to make a substantial

showing, the petitioner “must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the

issues in a different manner; or that the questions are adequate

to deserve encouragement to proceed further.” Id.

McSpadden’s request for a CPC is granted because the

district court erred in its sua sponte determination that

McSpadden’s trial-court waiver of appeal waived the issues he

sought to raise in his § 2254 petition. His waiver in the trial

court states only that McSpadden “waives the right to appeal the

verdict herein” and states nothing about waiving his right to

seek habeas relief. The state habeas court did not rely on the

waiver in denying McSpadden’s habeas application. Nor did the

respondent plead the procedural bar in federal district court.

The district court’s reliance on the waiver in dismissing

McSpadden’s § 2254 petition is misplaced. Only when the state

habeas court invokes such a procedural default is review of the

issues precluded in federal court. Harris v. Reed, 489 U.S. 255,

262 (1989) (federal review precluded absent a showing of cause

for the procedural default and resulting prejudice, or a

miscarriage of justice). The court also erred in not giving

McSpadden notice that it was considering procedural default and

the opportunity to respond to that notice. Magouirk v. Phillips,

144 F.3d 348, 358-59 (5th Cir. 1998) (district court may raise

procedural default in habeas sua sponte but abuses its discretion

by not giving petitioner notice and an opportunity to respond).

Because the district court erroneously relied upon

McSpadden’s waiver of his right to file a direct appeal from his

conviction in state court in dismissing McSpadden’s § 2254
No. 98-40767

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petition, McSpadden’s request for a CPC is GRANTED. No further

briefing is necessary, and the district court’s judgment is

VACATED, and the case is REMANDED. See Clark v. Williams, 693

F.2d 381, 381-82 (5th Cir. 1982).

The motion filed by the Federal Public Defender to represent

McSpadden in this appeal is DENIED as unnecessary.